State v. Khat

STATE OF NEBRASKA, APPELLEE, v. THOK S. KHAT, APPELLANT.

No. A-18-081.

NEBRASKA COURT OF APPEALS

December 31, 2018

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Sarpy County, STEFANIE A. MARTINEZ, Judge, on appeal thereto from the County Court for Sarpy County, ROBERT C. WESTER, Judge. Judgment of District Court affirmed.

Patrick J. Boylan, Sarpy County Public Defender, for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.

MOORE, Chief Judge, and RIEDMANN and WELCH, Judges.

MOORE, Chief Judge.

INTRODUCTION

Thok S. Khat appeals from the order of the district court for Sarpy County, which affirmed his convictions following a jury trial in Sarpy County Court for carrying a concealed weapon, resisting arrest, and obstructing a peace officer. The county court had overruled Khat's motion to suppress evidence obtained as a result of a search of Khat and his vehicle following a traffic stop. On appeal, Khat assigns error to the district court's affirmance of this ruling and to its conclusion that the evidence was sufficient to support his convictions. We affirm the district court's order.

BACKGROUND

This appeal arises out of an incident that occurred on December 2, 2016. Following a traffic stop on that date, police smelled an odor of marijuana coming from Khat's vehicle and asked him to get out of his vehicle, after which a struggle ensued and Khat was arrested. Police searched Khat and found a handgun in his pocket, and a search of his vehicle located what appeared to be marijuana and a digital scale.

The State filed a complaint in the county court, charging Khat with a number of infractions and offenses, including, as relevant to the present appeal, resisting arrest in violation of Neb. Rev. Stat. § 28-904 (Reissue 2016), obstructing a police officer in violation of Neb. Rev. Stat. § 28-906 (Reissue 2016), and carrying a concealed weapon in violation of Neb. Rev. Stat. § 28-1202 (Reissue 2016), all three of which are Class I misdemeanors.

Khat filed a motion to suppress, alleging that there was no probable cause to stop his vehicle, the stop violated his constitutional rights, he did not consent to a search of his person or vehicle, the searches of his person and vehicle were not incident to a lawful arrest, he was placed in custody without an advisement of his Miranda rights, there was no active warrant or "locate" for him when he was stopped, and all the physical and testimonial evidence seized was "the fruit of the tree of an illegal arrest."

A suppression hearing was held before the county court. The court heard testimony from police officers Josh Maguire and Joe Bailey of the Bellevue Police Department, who were both involved in the traffic stop of Khat, and it also received exhibit 1, a copy of the video recording of the stop from Maguire's cruiser camera.

Maguire and Bailey's testimony from the suppression hearing shows that on December 2, 2016 at approximately 2 a.m. they were parked next to each other in their cruisers in a parking lot in Bellevue observing traffic when they heard an approaching vehicle with a "loud muffler" or "exhaust" that was "much louder" than normal. The vehicle was loud enough that they heard it approaching their location before it was visible. The officers began following the vehicle to make a traffic stop for the muffler violation, and when they pulled in behind it, they could see that it did not have any license plates. Once behind the vehicle, they also observed that one of the taillights appeared to have red tape over it that was "starting to come off a little bit; so there was some white light showing."

After Maguire pulled out behind the vehicle and called the traffic stop over his radio, he activated his emergency lights. The vehicle stopped, and as the officers approached the vehicle, they saw that it had valid in-transit tags. The officers made contact with the driver, who turned off the vehicle and rolled down the driver's side window. He provided his "Nebraska ID card," which identified him as Khat. According to Maguire, he smelled an odor of "unburnt marijuana" coming from the vehicle as he spoke with Khat. Bailey, who approached the passenger side of the vehicle, could not smell anything initially since the window was up on that side. However, when Khat retrieved his paperwork, he opened the glove box, and Bailey observed a jar containing "a little bit of green leafy residue" that appeared to be marijuana. Later, when the car door was open, Bailey also smelled marijuana.

After Maguire smelled the odor of marijuana, he made a couple of requests for Khat to get out of the vehicle, which Khat refused. After that, Maguire told Khat he would be arrested if he did not get out of the vehicle, and Khat finally complied. When Khat exited the vehicle, Maguire noticed what appeared to be the clip of a knife in Khat's front pocket, and he asked Khat to keep his hands out of his pockets. Despite Maguire's instruction, Khat kept reaching for his pockets. The first time, Maguire told Khat he thought he had identified a knife in the pocket, but Khat toldhim that it was not a knife. Maguire instructed Khat not to put his hands in his pockets a second time as they were walking back to the front of Maguire's patrol car. Because Khat continued to put his hands in his pockets, Maguire grabbed Khat's hands to keep them from his pockets. Khat then tensed up, tried to turn back toward his vehicle, and said he wanted to retrieve his keys. Maguire did not let him do this "[f]or safety." Maguire decided to handcuff Khat and told him to turn around and face the police cruiser, but he refused to do so. According to Maguire, Khat began to tense up and tried to pull his hands away from Maguire and Bailey who were both grabbing him at that point. Bailey indicated that Khat was "pretty strong" and that they were not able to get his arms behind his back. Khat continued to resist, and all three of them fell to the ground. The officers struggled with Khat for about 30 seconds before getting him handcuffed. The officers told Khat he was under arrest at some point between when they walked Khat to the police car and he began to tense up and when they succeeded in handcuffing him. Bailey testified that Khat was being arrested for "[o]bstruction at that point."

After Khat's arrest, the officers searched him and found a black and purple "Ruger LC9" handgun in his pocket. Maguire testified that this was not the same item that he thought was a knife. Maguire testified that they did not locate a knife in searching Khat and that he had no idea what the item was that he initially thought was a knife. Because they had smelled marijuana at the start of the traffic stop, the officers also searched Khat's vehicle and found a clear jar containing "some flakes" of a green leafy substance that smelled like marijuana and a digital scale.

The county court entered an order overruling Khat's motion to suppress. The court first concluded that the officers had probable cause for a traffic stop of Khat's vehicle. The court stated that both the loud muffler noise heard by the officers and the white light visible to the rear of Khat's vehicle provided probable cause for the stop. Next, the court concluded that once Khat's vehicle was stopped, the smell of marijuana provided a valid basis for the officers to detain Khat and ask him to exit the vehicle. The court determined that Khat's continuing to place his hands into his pockets despite several commands not to do so, coupled with his efforts to gain entrance to his vehicle, provided sufficient probable cause to arrest him for obstructing a peace officer. The court concluded that the subsequent search of Khat's person and his vehicle were legitimate searches incident to his arrest.

A jury trial was held, and Khat timely renewed his motion to suppress, which the county court again denied. The State presented testimony from Maguire and Bailey, and their testimony was largely consistent with their testimony at the suppression hearing, although they testified to a few additional points which we set forth below. The State also offered and the court received into evidence the police cruiser video recording and the gun retrieved from the search of Khat. The video was played for the jury. Maguire and Bailey testified that as they were trying to handcuff Khat, they used "knee strikes" on him because of his resistance. After they fell to the ground, Maguire started delivering "closed-hand strikes with his fist and elbow" to subdue Khat, who continued to resist until the officers finally handcuffed him. Maguire estimated that the entire altercation, from the time the officers first tried to handcuff Khat until they succeeded in handcuffing him on the ground and he was again "brought back in front of the camera," lasted about 60 seconds. Maguire filled out a use-of-force report following the incident. Maguire and Bailey also testified about the gun found in Khat's pocket, confirming that it was a "Ruger LC9""9-millimeter" handgun with four rounds in the magazine. Both officers confirmed that the gun was not visible until it had been removed from Khat's pocket.

The jury found Khat guilty of resisting arrest, obstructing a police officer, and carrying a concealed weapon. The county court accepted the jury's verdict, and it subsequently sentenced Khat to 6 months of probation for all three offenses.

Khat filed a notice of appeal, notifying the county court of his intent to appeal his convictions to the district court. In his statement of errors in the district court, he alleged that the county court erred by overruling his motion to suppress. He also alleged that the evidence was insufficient to support his convictions and that the county court imposed an excessive sentence....